Ex Parte METCALF et al - Page 10




             Appeal No. 94-2842                                                                                   
             Application 07/882,351                                                                               


             ordinary skill in the art would have had a reasonable expectation                                    
             that a compound which attracts one of the species also would                                         
             attract the other to some extent.                                                                    
                    Evidence that one of ordinary skill in the art would have                                     
             had such an expectation is the data of Lampman I (page 969, Table                                    
             5), wherein the attraction of western, southern and northern                                         
             rootworms to ten compounds is compared.  The results show that in                                    
             ten out of the thirteen tests in which one of the compounds                                          
             attracted either southern corn rootworm or northern corn                                             
             rootworm, the compound also attracted the other corn rootworm to                                     
             some extent.                                                                                         
                    Thus, given that phenylethanol is effective for attracting                                    
             southern corn rootworm, one of ordinary skill in the art would                                       
             have had a reasonable expectation of success in using                                                
             phenylethanol to attract northern corn rootworm.  Because all                                        
             that is required for a prima facie case of obviousness is a                                          
             reasonable expectation of success rather than absolute certainty,                                    
             see In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673, 1680 (Fed.                                    
             Cir. 1988), it would have been prima facie obvious to one of                                         
             ordinary skill in the art to use phenylethanol to attract                                            
             northern corn rootworm.                                                                              
                    The evidence presented in the Lampman declaration discussed                                   
                                                      -10-10                                                      





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